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STATE v. SUNDQUIST

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State of Nebraska, appellee, v.

Marvin D. Sundquist, appe

___ N.W.2d ___

Filed January 4, 2019. No. S-17-1297.

1. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law 

and fact.

2. ____: ____. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for 

clear error.

3. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

4. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

5. Appeal and Error. An appellate court independently reviews questions 

of law in appeals from the county court.

6. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel, the defendant must show that his or her counsel’s 

performance was deficient and that this deficient performance actually 

prejudiced the defendant’s defense.

7. Effectiveness of Counsel: Records: Appeal and Error. A claim of 

ineffective assistance of counsel need not be dismissed merely because 

it is made on direct appeal. The determining factor is whether the record 

is sufficient to adequately review the question.

8. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffective assistance of counsel claim is raised in a direct appeal, the appellant 

is not required to allege prejudice; however, an appellant must make 

specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/15/2019 09:08 AM CDT
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9. ____: ____: ____. General allegations that trial counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an 

ineffective assistance claim on direct appeal and thereby preserve the 

issue for later review.

10. Effectiveness of Counsel: Records: Appeal and Error. An ineffective 

assistance of counsel claim made on direct appeal can be found to be 

without merit if the record establishes that trial counsel’s performance 

was not deficient or that the appellant could not establish prejudice.

11. Actions: Waiver: Appeal and Error. Under the law-of-the-case doctrine, a well-recognized waiver rule has emerged: A decision made at 

a previous stage of litigation, which could have been challenged in the 

ensuing appeal but was not, becomes the law of the case; the parties are 

deemed to have waived the right to challenge that decision.

Appeal from the District Court for Dodge County, Geoffrey

C. Hall and Timothy P. Burns, Judges, on appeal thereto 

the County Court for Dodge County, Kenneth J. Vampo

Judge. Judgment of District Court affirmed.

Marvin D. Sundquist, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Papik, JJ

Heavican, C

I. INTRODUCTION

This is an appeal from the district court for Dodge County, 

Nebraska. Following a retrial in the county court for Dodge 

County, a jury convicted Marvin D. Sundquist of driving under 

the influence (DUI), second offense aggravated. Sundquist was 

sentenced to 18 months’ probation. The district court affirmed. 

Sundquist appeals. We affirm.

II. BACKGROUND

At approximately midnight on November 17, 2014, Officer 

Anthony Gartner conducted a traffic stop on a vehicle for 
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speeding. Sundquist was the driver and only person present 

in the vehicle. After making contact with Sundquist, Gartner 

smelled the odor of alcoholic beverage coming from inside 

the vehicle and noticed that Sundquist’s eyes were watery and 

bloodshot. Sundquist also admitted to drinking.

Gartner asked Sundquist to perform certain field sobriety 

tests, as well as a preliminary breath test. The results of this 

testing indicated that Sundquist was impaired. Sundquist was 

arrested and submitted to a chemical breath test performed in 

accordance with all relevant regulations. The chemical breath 

test was completed using a machine commonly referred to 

as a “DataMaster,” a machine that utilizes infrared spectrophotometry, or an infrared light beam, to measure the alcohol 

content in a person’s breath. The result of the chemical breath 

test showed Sundquist’s breath alcohol content to be .160 of 1 

gram of alcohol per 210 liters of breath.

1. Pretrial Procee

The State charged Sundquist with DUI, second offense 

aggravated, under Neb. Rev. Stat. §§ 60-6,196 (Reissue 2010) 

and 60-6,197.03(5) (Cum. Supp. 2014), a Class I misdemeanor. 

At a hearing on January 13, 2015, the State offered to drop 

the aggravated portion of the charge as part of a plea agreement in exchange for Sundquist’s pleading guilty or no contest. Sundquist, acting pro se, rejected the offer and sought a 

jury trial. At the insistence of the court, Sundquist was given 

the opportunity to reconsider his decision and to seek counsel. Though the order of events is not entirely clear from the 

record, it appears that Sundquist was eventually appointed 

counsel, but still rejected the offered plea agreement.

2. First Tri

Trial was held on April 9, 2015. Sundquist, by this time 

represented by counsel, objected to Gartner’s testimony regarding the results of Sundquist’s breath test. Sundquist’s objection 

was based on the State’s failure to disclose “the appropriate 
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certification” to establish Gartner as qualified to operate the 

DataMaster. Sundquist argued that “his entire defense was 

based on the State’s failure to disclose the correct permit and 

that . . . he had prepared no alternative strategy or defense.” 

After hearing from the parties, the county court overruled 

Sundquist’s objection. The jury found Sundguist guilty, and 

the county court found Sundquist’s conviction to be a second offense.

Several days later, Sundquist’s counsel moved for a 

new trial. Sundquist, acting pro se, moved to withdraw the 

motion and further asked that new counsel be appointed. In 

response, Sundquist’s trial counsel withdrew and new counsel 

was appointed. Sundquist was subsequently sentenced to 18 

months’ probation.

3. First Appe

On June 16, 2015, Sundquist appealed his conviction to the 

district court. In that appeal, Sundquist argued, among other 

things, that the county court erred in allowing the arresting 

officer “to provide testimony in regard to the results of the 

test as his certification to operate the testing device was not 

previously provided to [Sundquist] and his counsel.” After 

hearing from the parties, the district court agreed that the 

county court had erred. The district court further concluded 

that the error was not harmless. Accordingly, the district court 

reversed the county court’s judgment and remanded the case 

for further proceedings.

On February 26, 2016, Sundquist appealed to the Nebraska 

Court of Appeals, arguing that the Double Jeopardy Clause forbade a retrial. On July 29, in case No. A-16-213, the Court of 

Appeals rejected that argument and summarily affirmed.

4. Second T

A second trial was held on April 20, 2017. Sundquist filed 

multiple pretrial motions. First, Sundquist moved for discharge 

on speedy trial grounds, which the county court denied. Second, 
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once the State made clear that it would not offer Sundquist a 

plea agreement as it had initially done prior to the first trial, 

Sundquist moved to dismiss on the grounds of prosecutorial 

misconduct and prosecutorial vindictiveness. That motion was 

also denied.

At trial, the State again called Gartner to testify. His testimony was consistent with his prior testimony and covered the 

traffic stop, the on-the-scene investigation, and the chemical 

breath test at the police station. The State also called the maintenance officer for the breath test machine to testify. The officer’s testimony encompassed the chemical breath test machine, 

the various maintenance protocols, and the relevant margin of 

error. Specifically, he testified that the machine was working 

properly on the day in question.

A jury found Sundquist guilty, and the county court again 

determined that Sundquist’s conviction was a second offense. 

Sundquist was again sentenced to 18 months’ probation.

5. Second Ap

On May 30, 2017, Sundquist, represented by counsel, 

appealed his conviction to the district court. Counsel did not 

file a statement of errors on Sundquist’s behalf before that 

court. Despite this, the district court addressed the issue raised 

at the appeal hearing: that Sundquist was entitled to a reoffer 

of the earlier plea agreement that the State proposed before the 

first trial and the State’s failure to do so was improper. The district court affirmed the county court’s judgment and conviction, 

noting that the court found no error. Sundquist appeals.

III. ASSIGNMENTS OF ERROR

Sundquist assigns, consolidated and restated, that (1) his 

counsel was ineffective in various ways, (2) both counsel were 

ineffective and Sundquist’s due process rights were violated 

with respect to the State’s only offered plea agreement, and (3) 

his constitutional rights were violated by various actions of the 

State and the trial court.
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IV. STANDARD OF REVIEW

[1,2] Appellate review of a claim of ineffective assistance 

of counsel is a mixed question of law and fact.1 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

error.2 With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

articulated in Strickland v. Washington,

3

 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision.4

[3-5] Both the district court and a higher appellate court generally review appeals from the county court for error appearing 

on the record.5 When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the 

decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.6

But an appellate court independently reviews questions of law 

in appeals from the county court.7

V. ANALYSIS

1. Ineffective Assistance of 

Sundquist contends that he received ineffective assistance 

of counsel during the course of his representation. First, he 

argues that he was, in effect, denied an appeal to the district court because (1) he received ineffective assistance of 

counsel in that his attorney (a) failed to file a statement of 

errors, (b) failed to make “persuasive” arguments, (c) failed to 

1 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

2 Id.

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

4 State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).

5 State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).

6 Id.

7 Id.
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adequately challenge the chemical breath test, and (d) failed 

to argue that his performance on the field sobriety tests was 

inconsistent with the level of intoxication as indicated by the 

chemical breath test, and (2) the court prevented him from 

arguing in his own behalf. Sundquist next claims his counsel was ineffective by not adequately communicating with 

Sundquist. Finally, Sundquist argues that the State interfered 

with his right to effective assistance of counsel in the first 

trial by not disclosing that Gartner was qualified to operate 

the chemical breath test machine, which Sundquist argues 

interfered with his counsel’s ability to advise him during 

plea negotiations.

[6-9] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington, the defendant must 

show that his or her counsel’s performance was deficient and 

that this deficient performance actually prejudiced the defendant’s defense.8

 A claim of ineffective assistance of counsel 

need not be dismissed merely because it is made on direct 

appeal. The determining factor is whether the record is sufficient to adequately review the question.9

 When the claim 

is raised in a direct appeal, the appellant is not required to 

allege prejudice; however, an appellant must make specific 

allegations of the conduct that he or she claims constitutes 

deficient performance by trial counsel.10 General allegations 

that trial counsel performed deficiently or that trial counsel 

was ineffective are insufficient to raise an ineffective assistance claim on direct appeal and thereby preserve the issue for 

later review.11

[10] Appellate courts have generally reached ineffective 

assistance of counsel claims on direct appeal only in those 

instances where it was clear from the record that such claims 

8 State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).

9 Id.

10 Id.

11 Id.
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were without merit, or in the rare case where trial counsel’s 

error was so egregious and resulted in such a high level of 

prejudice that no tactic or strategy could overcome the effect 

of the error, which effect was a fundamentally unfair trial. An 

ineffective assistance of counsel claim made on direct appeal 

can be found to be without merit if the record establishes that 

trial counsel’s performance was not deficient or that the appellant could not establish prejudice.12

As we have previously stated, an appellant is required to 

specifically assign and argue his or her trial counsel’s allegedly deficient conduct.13 This arises from a fundamental rule of 

appellate practice. An alleged error must be both specifically 

assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.14 A generalized and vague assignment of error that does not advise an 

appellate court of the issue submitted for decision will not be 

considered.15 Similarly, an argument that does little more than 

restate an assignment of error does not support the assignment, 

and an appellate court will not address it.16

It naturally follows that on direct appeal, an appellate court 

can determine whether the record proves or rebuts the merits 

of a claim of ineffective assistance of trial counsel only if it 

has knowledge of the specific conduct alleged to constitute 

deficient performance.17 An appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel when raising an ineffective 

assistance claim on direct appeal.18

12 Id.

13 State v. Filholm, supra note 1.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.
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(a) Failure to File Statement of Errors

Sundquist assigns that his counsel failed to file a statement 

of errors in his appeal to the district court. The State concedes 

that counsel did not file a statement of errors, but argues that 

Sundquist suffered no prejudice, because the district court 

addressed Sundquist’s challenges on appeal despite counsel’s 

deficient performance. We note that the district court considered the argument advanced by Sundquist in his appeal to that 

court. The district court found no merit to Sundquist’s argument as to the filing of a statement of errors. We agree.

The district court considered the argument advanced by 

Sundquist in his appeal to that court, despite the absence of a 

statement of errors. At the close of arguments, the district court 

stated, “I don’t find any error that occurred at the County Court 

level. As I just indicated to your plea offer argument, is — I 

would say it’s frivolous. . . . The State is under no obligation to 

re-offer you any type of plea agreement once you rejected it.” 

The court’s statement at the close of argument indicates that 

the court addressed the argument raised by Sundquist despite 

the fact that the alleged error—the refusal to require the State 

to reoffer a previously rejected plea agreement—had not been 

assigned in a statement of errors to the court. Furthermore, as 

we conclude below, Sundquist was not entitled to a reoffer of 

the plea agreement. As such, Sundquist was not prejudiced by 

his counsel’s inadequate performance.

This case is reminiscent of State v. Stubbendick,

19 a case 

heard by the Court of Appeals. In Stubbendick, the defendant’s attorney likewise failed to file a statement of errors, 

leaving the district court to limit its review to plain error. 

The defendant argued that had counsel properly filed a statement of errors which challenged the probable cause findings 

regarding his operation of a vehicle on a public roadway and 

the sufficiency of the evidence, the district court may have 

19 State v. Stubbendick, No. A-14-232, 2014 WL 4825375 (Neb. App. Sept. 

30, 2014) (selected for posting to court website).
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found in his favor on these issues. The Court of Appeals 

applied Strickland, finding that the defendant’s arguments 

did not demonstrate a reasonable probability that but for his 

counsel’s allegedly deficient performance, the result of the 

proceeding would have been different. The result is the same 

in this case.

As such, there is no merit to Sundquist’s argument as to the 

filing of a statement of errors.

(b) Failure to Make 

“Persuasive” Arguments

Sundquist argues that he suffered ineffective assistance of 

counsel at his second trial on April 20, 2017, where he claims 

his counsel failed to make “persuasive” arguments to both the 

county court and the district court on appeal concerning the 

margin of error of the DataMaster.

First, Sundquist argues that his trial counsel should have 

attacked either the admissibility or the accuracy of the 

DataMaster results, or vigorously attacked the margin of error 

of the DataMaster. Sundquist contends that at trial, his counsel “made a half-hearted attempt at questioning the margin 

of error.”20 Sundquist claims that his attorney should have 

questioned the accuracy of the DataMaster and the difference 

between a 5-percent margin of error allowed in a controlled 

environment, as compared to the margin of error in an uncontrolled environment. We observe, however, that counsel raised 

the issue of the DataMaster’s accuracy and the margin of error. 

As such, counsel’s conduct was not deficient.

Sundquist next argues that on appeal to the district court, his 

attorney failed to effectively argue in support of his position 

that the State was required to reoffer the original plea agreement. Again, we note the record demonstrates that counsel 

raised the issue. Despite lacking legal authority for the position, counsel nevertheless argued that the State should have 

20 Brief for appellant at 8.
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been required to reoffer the rejected plea agreement, because 

the State failed to provide Gartner’s DataMaster certification at 

the time the plea agreement was offered.

It is important to note that the district court properly observed 

that under State v. Obermier,

21 the State is not required to enter 

the certification into evidence. Despite counsel’s effort, the district court denied the appeal, further noting that it was, in the 

opinion of the court, “frivolous.” Counsel cannot be deficient 

in raising the very issue Sundquist now complains about, and 

as such, there is no merit to Sundquist’s allegation.

As for the argument that the State was required to reoffer 

the previously rejected plea agreement, the record shows that 

despite being aware that case law did not support the position that the State must reoffer the prior plea agreement, 

Sundquist’s counsel argued that the State was required to 

reoffer the previously rejected plea agreement. Counsel based 

that request on the State’s action in failing to disclose the officer’s chemical test machine certification. Because Sundquist 

does not explain precisely what counsel should have argued in 

an effort to prevail on this point, and because counsel clearly 

raised the issue of the prior plea agreement, counsel’s conduct 

was not deficient.

Sundquist also argues that the court erred and caused him to 

have ineffective assistance of counsel when it declined to allow 

Sundquist to be heard following the court’s ruling on the reoffer 

of the plea agreement. The court observed that Sundquist was 

represented by counsel and not entitled to address the court at 

that time due to the presence of counsel on his behalf. We find 

no error in the court’s ruling. We have noted that a defendant 

does not have a right to any type of “hybrid representation,” 

and it is within the trial court’s discretion whether to allow 

such representation.22 The trial court did not err in refusing to 

21 State v. Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992).

22 State v. Wilson, 252 Neb. 637, 652, 564 N.W.2d 241, 253 (1997).
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allow Sundquist to be heard at a time when he was represented 

by counsel.

There is no merit to these allegations.

(c) Failure to Argue Sundquist’s Performance 

on Field Sobriety Tests Was Inconsistent 

With Level of Intoxication Indicated 

by Chemical Breath Test

Sundquist assigns that counsel was inadequate for failing to 

challenge that Sundquist’s performance on the field sobriety 

tests was inconsistent with the results of the chemical breath 

test indicating the level of intoxication. We have combined 

these assignments as they are indistinguishable. The record 

demonstrates that Sundquist’s counsel had no grounds to 

argue that Sundquist’s performance on the field sobriety tests 

and lack of video evidence were inconsistent with the level 

of intoxication shown by the chemical breath test results. 

Gartner’s testimony indicated that Sundquist showed signs 

of impairment on the field sobriety tests in that Sundquist 

was unable to complete maneuvers, could not maintain his 

balance, and failed to follow directions, all of which are 

consistent with intoxication and none of which can be used 

to establish that Sundquist was below a .150 breath alcohol 

content level.

(d) Failure to Adequately Communicate 

With Sundquist

Sundquist next alleges that counsel failed to adequately communicate with him. Sundquist alleges that prior to his second 

trial, he requested that counsel hire an expert witness to determine the margin of error for the chemical breath test machine. 

Sundquist claims he was unaware that counsel had failed to 

obtain an expert until a week prior to trial. Further, Sundquist 

alleges that he never discussed trial strategy with his attorney. 

However, Sundquist fails to demonstrate how an expert would 

have meaningfully contributed to his margin of error claim 
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beyond the cross-examination of the State’s witnesses concerning the particular DataMaster unit’s margin of error. Further, as 

to Sundquist’s claim that counsel failed to communicate trial 

strategy, the record contradicts Sundquist’s claims.

At the district court appeal, counsel is on record stating, “I’ve communicated all pleas to my client since I was 

appointed. No pleas were ever offered, Judge, at the lower case 

in County Court.” Further, Sundquist’s counsel followed the 

trial strategy of highlighting the margin of error of the breath 

test machine, a strategy that Sundquist was clearly aware of 

as, by his own admission, he sought to hire an expert to lend 

credibility to the argument regarding the margin of error. 

Additionally, counsel clearly argued that Sundquist “wish[ed] 

that he had the opportunity to plead to the lower charge,” a 

statement that is accurate and was effectively communicated to 

both Sundquist’s counsel and the court. Ultimately, however, 

Sundquist failed to sufficiently allege facts that demonstrate 

deficient performance. Further, the evidence against Sundquist 

was overwhelming and better communication would not have 

changed the weight of the evidence.

There is no merit to this allegation.

(e) Sundquist Claims State Interfered With Right to 

Effective Assistance of Counsel in First Trial 

by Not Disclosing Gartner’s Certification

Sundquist also argues that the State interfered with his 

counsel’s communication by withholding information about 

Gartner’s chemical breath test machine certification at the time 

of the plea offer. Additionally, Sundquist contends that his due 

process rights were violated when he was denied the opportunity to make a knowing and voluntary decision regarding the 

initial plea offer.

We turn first to whether Sundquist waived his right to 

appeal the issue regarding the plea agreement. The State correctly asserts that Sundquist’s claim regarding the prosecution’s failure to disclose information during a plea offer is not 
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properly before the court. The State, relying on Pennfield Oil 

Co. v. Winstrom,

23 grounds its argument on the fact that in the 

first appeal, Sundquist had the opportunity and the incentive 

to raise the claim regarding the plea agreement, noting that 

Sundquist waived the issue by failing to raise the claim on his 

first appeal.

[11] In Pennfield Oil Co., we noted that under the law-ofthe-case doctrine, a well-recognized waiver rule has emerged: 

A decision made at a previous stage of litigation, which could 

have been challenged in the ensuing appeal but was not, 

becomes the law of the case; the parties are deemed to have 

waived the right to challenge that decision, for it would be 

absurd that a party who has chosen not to argue a point on a 

first appeal should stand better with regard to the law of the 

case than one who had argued and lost.

The State also relies on U.S. v. Henry,

24 in support of its 

argument. In Henry, the U.S. Court of Appeals for the District 

of Columbia Circuit stated, “It is well-settled that ‘where an 

argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.’”25

Here, Sundquist had the opportunity and the incentive to 

raise the claim regarding the plea agreement during his original appeal following his first trial and conviction. Sundquist 

failed to do so and is therefore bound by the law-of-the-case 

doctrine.

Sundquist waived this claim by failing to appeal it during 

the initial appeal that followed his first trial and conviction.

2. Claims of Constitutional Violat

Sundquist next contends that his constitutional rights were 

violated in various ways. First, Sundquist argues that the 

23 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

24 U.S. v. Henry, 472 F.3d 910 (D.C. Cir. 2007).

25 Id. at 913.
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State’s refusal to reoffer the same plea agreement at his second trial, which he had rejected at his first trial, amounted to 

vindictive prosecution, a due process violation. Sundquist also 

assigns that he is being punished for “something other than the 

crime he was charged with.” Next, Sundquist argues that his 

second conviction and sentence violated the Double Jeopardy 

Clause. Lastly, Sundquist argues that his right to a speedy trial 

was violated.

(a) Vindictive Prosecution

Sundquist alleges that the State engaged in vindictive prosecution by refusing to reoffer the previously rejected plea 

agreement once the case had been remanded for a new trial. 

Specifically, Sundquist points to a statement made by the State 

during the second trial, noting that “‘[a]s an office policy, after 

a jury trial, we don’t make plea offers.’”26 Sundquist relies on 

Blackledge v. Perry27 to support this claim.

We begin by observing that Sundquist is, of course, correct that punishing a person because he has done what the law 

plainly allows him to do—in this case appeal his conviction—

is a due process violation “of the most basic sort.”28 The U.S. 

Supreme Court has noted that while an individual certainly 

may be penalized for violating the law, he just as certainly may 

not be punished for exercising a protected statutory or constitutional right.

But the Court went on to note that the imposition of punishment is the very purpose of criminal proceedings. Therefore, 

the presence of a punitive motivation does not provide an 

adequate basis for distinguishing governmental action that is 

justified as a legitimate response to criminal conduct from 

governmental action that is an impermissible response to a 

protected activity. The Court, in establishing the presumption 

26 Brief for appellant at 13.

27 Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).

28 Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 

604 (1978).
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of a vindictive motive, specifically noted that it had done so 

only in cases in which a “reasonable likelihood of vindictiveness exists.”29

Moreover, Sundquist misunderstands Blackledge and its 

implications on his case. In Blackledge, the U.S. Supreme 

Court affirmed the issuance of a writ of habeas corpus because 

the State charged a greater offense for the same conduct for 

which the defendant had sought a de novo retrial of a lower 

court conviction, finding that the State’s higher charge had a 

potential vindictive nature.

In this case, Sundquist was not charged with a greater 

offense than what he had previously appealed, nor was his 

resulting sentence greater than that of his first trial. Sundquist 

argues that because he was not reoffered a plea agreement, his 

due process rights were violated. We disagree.

In United States v. Osif,

30 the U.S. Court of Appeals for the 

Ninth Circuit noted that “a defendant does not have a constitutional right to a plea bargain . . . nor, when he rejects a plea, 

can he later object to the government’s decision to proceed 

to trial on the counts originally charged.” Further, the Ninth 

Circuit indicated that the vindictive prosecution doctrine does 

not apply when neither the charge’s severity nor the sentence 

is increased.

The factual background of Osif is on point in this case. The 

defendant appealed from his conviction for second degree murder pursuant to a plea agreement that provided for a 15-year 

sentence. Before entering the plea, the defendant was tried 

and convicted of first degree murder, but that conviction was 

reversed on appeal. Prior to the initial trial, the government 

offered a plea agreement with a 10-year sentence for second 

degree murder, which the defendant rejected. On appeal, he 

argued that the government’s refusal to reoffer the earlier, more 

beneficial, plea agreement on remand amounted to vindictive 

29 United States v. Goodwin, 457 U.S. 368, 373, 102 S. Ct. 2485, 73 L. Ed. 

2d 74 (1982) (emphasis supplied).

30 United States v. Osif, 789 F.2d 1404, 1405 (9th Cir. 1986).
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prosecution. The Ninth Circuit disagreed, noting that not only 

is there no constitutional right to a plea bargain, but that “vindictiveness is not present if there are independent reasons or 

intervening circumstances to justify the prosecutor’s action.”31

Here, neither Sundquist’s charge nor his sentence was 

increased; rather, the State merely refused to reoffer, after an 

intervening conviction on the original charge, the same plea 

offer that was previously rejected by Sundquist before the 

initial trial. Additionally, the State had already xpended the 

resources to prepare and try the case. Further, the State had 

obtained a conviction, giving it confidence that a second conviction was likely.

There is no merit to the allegation.

(b) Sundquist’s Claim That He Is Being Punished 

for Something Other Than Crime With 

Which He Was Charged

Assigned separately, but inextricably intertwined with 

Sundquist’s prosecutorial vindictiveness claim, is Sundquist’s 

claim that he is being punished for something other than the 

crime for which he was charged. Sundquist attempts to ground 

this argument in the fact that the State originally believed it 

appropriate to allow him to plead to nonaggravated DUI, a plea 

he rejected. He further argues that because his breath alcohol 

content was less than 10 percent over a .150 breath alcohol 

content, there was no reason to believe the trial court would 

not have accepted the plea.

Sundquist can provide no legal or factual authority on which 

he can ground this assignment of error. Further, his sentence 

was within limits established for the crime for which he was 

convicted. Therefore, this argument is without merit.

(c) Double Jeopardy Clause

Next, Sundquist argues that his conviction and sentence 

violate the Double Jeopardy Clause. The State contends that 

31 Id.
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Sundquist did not properly present the argument to the district 

court and that the district court did not consider it; thus, the 

argument was not preserved on appeal. The State cites to State 

v. Lavalleur 32 to support its contention that on Sundquist’s 

first appeal, the issue of double jeopardy was decided by 

the Court of Appeals, and that the issue may not now be 

relitigated on a subsequent appeal as it is now the law of 

the case.

We agree and find that the Court of Appeals’ decision is the 

law of the case. Therefore, Sundquist’s assignment of error is 

without merit.

(d) Speedy Trial

Finally, Sundquist argues that the State violated his right to a 

speedy trial. The State again argues that while Sundquist raised 

the issue in the county court following remand, he did not present the issue to the district court on appeal, thus preventing 

the district court from considering the issue and allowing only 

a review for plain error.

Sundquist maintains that had the State provided him with the 

information concerning Gartner’s certification, he would have 

agreed to the original plea agreement offered and pled guilty 

to nonaggravated DUI. Sundquist argues that the State’s failure 

required him to proceed through two trials. But the State was 

not required to present the officer’s permit, nor was the State 

required, at initial plea negotiations, to share the status of the 

officer’s certification. Sundquist freely chose to take on a risky 

defense strategy, and the State does not bear the responsibility 

for that failed strategy.

Sundquist’s final assignment of error is without merit.

VI. CONCLUSION

The district court, sitting as an appellate court, did not err 

in denying Sundquist’s appeal and affirming his conviction for 

32 State v. Lavalleur, 298 Neb. 237, 903 N.W.2d 464 (2017).
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DUI, second offense aggravated, as well as his sentence of 18 

months’ probation. We affirm.

Affirmed

Freudenberg, J., not participati

Cassel, J., concurring.

I write separately to emphasize the duty of effective appellate counsel to file a statement of errors in an appeal of a 

county court criminal case to the district court.

Sundquist was entitled to effective appellate counsel on his 

appeal from county court to district court. A criminal defendant 

has the right to the effective assistance of appellate counsel in 

his or her first appeal as of right.1 In a Nebraska criminal case 

tried in the county court, that first appeal runs to the district 

court.2 Thus, Sundquist’s appeal to the district court was his 

only appeal subject to the Sixth Amendment right to counsel.

To prevail on a claim of ineffective assistance of counsel 

under the Strickland v. Washington3 analysis, the defendant 

must show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

defendant’s defense.4 Here, the State conceded that Sundquist’s 

appellate counsel’s failure to file a statement of errors was 

deficient performance (that is, counsel’s performance did not 

equal that of a lawyer with ordinary training and skill in criminal law5

). This court agrees, and I agree with the court.

1 See, Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582, 162 L. Ed. 2d 

552 (2005); Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. 

Ed. 2d 539 (1987); Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 

2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 

341 (1974); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 

2d 811 (1963).

2 See State v. Hughan, 13 Neb. App. 862, 703 N.W.2d 263 (2005).

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

4 State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).

5 State v. Allen, ante p. 560, 919 N.W.2d 500 (2018).
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This court’s opinion concludes that there was no prejudice 

shown here. Again, I agree. Two reasons persuade me. First, at 

the appeal hearing before the district court, Sundquist’s appellate counsel advanced the very argument that Sundquist, now 

without counsel, urged to this court. Second, the record, which 

the court’s opinion quotes, demonstrates that despite the failure 

to file the statement of errors, the district court considered the 

merits of Sundquist’s argument. In other words, the district 

court did not apply the rule permitting it to review only for 

plain error.6

But as I see this appeal, those two facts were the only reasons not to apply a presumption of prejudice. United States v. 

Cronic 7 provides narrow exceptions to the Strickland analysis, where the reliability of the adversarial process is in such 

doubt that prejudice to the defendant will be presumed, resulting in a conclusion of ineffective assistance of counsel.8

 Two 

of the three Cronic exceptions are (1) where the accused is 

completely denied counsel at a critical stage of the proceedings and (2) where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.9

 Obviously, 

Sundquist’s one and only counseled appeal as of right is 

a critical stage of the proceedings against him. Although 

Sundquist’s appellate counsel failed to file the required statement of errors, at least he advanced the proposition Sundquist 

urges to this court. And the district court considered whether 

it constituted prejudicial error, which presents a much lower 

threshold than plain error.10

6 See State v. Nielsen, ante p. 88, 917 N.W.2d 159 (2018).

7 United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 

(1984).

8 State v. Jedlicka, supra note 4.

9 See id.

10 See State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018) (plain error is 

error, plainly evident from record, which prejudicially affects litigant’s 

substantial right and, if uncorrected, would result in damage to integrity, 

reputation, and fairness of judicial process).
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But it seems to me that it is only a short distance from the 

situation here to the equivalent of a complete denial of counsel 

on appeal. If appellate counsel files no statement of errors and 

advances no arguments for reversal, which results in a cursory 

review by the district court for plain error, it would be difficult 

to avoid having to apply one or both of the Cronic exceptions 

recited above.

This in turn could easily result in a reversal of the district 

court’s decision on appeal and a remand for a new direct 

appeal with new counsel. And it also implicates very basic ethical duties of Nebraska lawyers.11 These potential consequences 

dictate that defendants’ counsel in criminal case appeals from 

county court to district court should always file a timely statement of errors.

Miller-Lerman, J., joins in this concurren

11 See Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (rev. 2017) (competence) and 

3-501.3 (diligence).